Archive for October, 2014

The Supreme Court has agreed to hear another case on the Code of Judicial Conduct. It has not explicitly done so since Republican Party of Minnesota v. White (and we all know how that one turned out; cf. also the Caperton and Carrigan opinions). Judicial candidate Lanell Williams-Yulee signed a mass-mailing in which she solicited contributions to her campaign. Not surprisingly for those who have read the judicial ethics code in effect in a majority of states, this conduct violated the prohibition against personally soliciting campaign contributions. “A candidate . . . for a judicial office that is filled by public election between competing candidates shall not personally solicit campaign funds. . . .” Fla. Code of Judicial Conduct Canon 7C; see also 2007 Model Code R. 4.1; 1990 Model Code Canon 5C. As the 2007 Model Code (but not the Florida Code) helpfully defines, moreover, “’Personally solicit’ means a direct request made by a judge or a judicial candidate for financial support or in-kind services, whether made by letter, telephone, or any other means of communication.” The Florida Supreme Court thus publicly reprimanded Williams-Yulee for violating the Canon, notwithstanding her complaint that the Canon violates the First Amendment “in that it limits a judicial candidate’s right to engage in free speech by prohibiting a judicial candidate from directly soliciting campaign contributions.” The circuits have split on the First Amendment issue, and Williams-Yulee sought cert on that basis. (Of note, her petition relies in part on the Ninth Circuit’s recent split decision invalidating the personal solicitation canon as applied to non-judges, but the Ninth Circuit has since agreed to rehear the appeal en banc this December. See Wolfson v. Concannon en banc petition and panel opinion.) In part because Williams-Yulee’s adversary (the Florida Bar) made the controversial decision to urge the Supreme Court to hear Williams-Yulee’s petition, the Supreme Court has agreed to do so.

Of potential interest, the cert petition, in Appendix D, includes a copy of Williams-Yulee’s solicitation letter. In it, Williams-Yulee tells an unknown number of local lawyers, litigants, and others that:

I need to mount an aggressive campaign. I’m inviting the people that know me best to join my campaign and help make a real difference. An early contribution of $25, $50, $100, $250, or $500, made payable to “Lanell Williams-Yulee Campaign for County Judge”, will help raise the initial funds needed to launch the campaign and get our message out to the public. . . . Thank you in advance for your support.

As an editorial comment, let’s hope that at least five justices recognize the significantly coercive and corrupting effects of personal solicitation (both in reality and in appearance and both as to the judge and the contributor), particularly combined with the fact that the judges or prospective judges would be directly soliciting money from the same lawyers and parties who appear or will appear before them.

After 100-plus years, the American Judicature Society sadly will be closing its doors. As the AJS President said in a press release:

A fair and impartial justice system is the foundation of American liberty. The American Judicature Society has fought to improve and preserve the fairness, impartiality, and effectiveness of our justice system for 101 years as a member-based entity. However, in the last several years, the membership model has become more challenging for many nonprofit organizations around the country, including AJS. At the same time, new nonprofit entities with organizational and financial structures more suited to the times have joined AJS in the fight. The American Judicature Society’s Board of Directors decided that rather than operate on a limited scale, and rather than duplicate the excellent work of other similar entities, AJS should find new homes for its core functions. To this end, AJS and the National Center for State Courts (NCSC) have entered into a Memorandum of Understanding that transfers AJS’s Center for Judicial Ethics (the CJE) to NCSC and ensures that the CJE will continue its very important work. AJS is also in the process of finding new homes for Judicature and AJS’s internet accessible resource known as Judicial Selection in the States.

Even after the American Judicature Society closes its doors, its legacy will live on as long as Americans recognize and support a fair and impartial justice system as essential to our freedom.

Many presumably will be familiar with the Second Circuit’s reassignment of the New York “stop and frisk” controversy from Judge Scheindlin to another district court judge. See, e.g., Ligon v. City of New York, 736 F.3d 166, 171 (2d Cir. 2013) (“A district judge has no legal interest in a case or its outcome, and, consequently, suffers no legal injury by reassignment.”). Now, Prof. Kalhan (Drexel) has written a lengthy criticism about the Second Circuit panel’s process, orders, and opinions:

On October 31, 2013 — just days before New York City’s mayoral election — three federal appellate judges, José A. Cabranes, John M. Walker, Jr., and Barrington D. Parker, Jr., hastily issued an unusual order staying two major decisions by U.S. District Judge Shira A. Scheindlin, which held that the New York City Police Department’s “stop and frisk” practices involved unconstitutional racial profiling. Acting sua sponte and providing no reasoned explanation, the three judges dismissed Judge Scheindlin from presiding over the stop and frisk cases altogether, summarily concluding that she had “compromised” the “appearance of [im]partiality” surrounding the litigation. Two weeks later, after their order had been widely criticized, the three judges abruptly issued a new opinion casting aside the ostensible basis for their earlier decree in favor of other legal grounds. To support their decision, the three judges relied entirely upon extrajudicial information that — by their own acknowledgment — they “read [in] the newspapers.”

In this Article, I closely examine this episode, which highlights a growing fluidity between adjudication and public discourse. With enormous amounts of news, opinion, and other information instantly available online, it has become trivially easy for judges to independently research matters outside the formal judicial record that they deem relevant to the cases before them. As a result, judges increasingly appear to render decisions based on extrajudicial sources, but without meaningful constraints or norms to guide and limit the practice. The panel’s actions illustrate the hazards in this apparent trend. Throughout the stop and frisk litigation, New York City officials relentlessly attacked Judge Scheindlin in the media for her alleged “bias” against law enforcement, but declined to actually seek her recusal. By validating and giving effect to that campaign — based entirely on what they had read in the newspapers — Judges Cabranes, Walker, and Parker openly permitted the norms of contemporary political discourse embodied in those news stories to displace the norms of reasoned judicial decision making, and unnecessarily inserted themselves into the mayoral election campaign.

Whatever the precise reasons for the conduct of Judges Cabranes, Walker, and Parker, both due process and the quality of their adjudication suffered as a result. And ironically, the three judges also thereby failed to satisfy the very standards to which they sought to hold Judge Scheindlin. The procedurally irregular and substantively deficient nature of their adjudication gave more than ample cause for reasonable observers to question the three judges’ own impartiality and propriety, and undermined the decisional independence that trial judges must enjoy to render fair and impartial decisions that are seen as legitimate across the full spectrum of the public’s diverse litigants and communities.